February 02, 2012

Judge Denies Preliminary Injunction for Occupy D.C. Protesters

Updated at 5:50 p.m.

As expected, U.S. District Judge James Boasberg issued an
order (PDF) this afternoon denying a motion brought by Occupy D.C. protesters for a preliminary injunction barring U.S. Park Police from seizing or destroying tents and other property.

Lead counsel for the Occupy D.C. protesters, Washington solo practitioner Jeffrey Light, had said earlier this week that he anticipated Boasberg would deny the motion, based on statements made by the U.S. Department of Interior that there were no imminent plans to clear out McPherson Square, and that the government would follow regulations already in place requiring them to give notice of such a decision.

During oral arguments on Jan. 31, Boasberg had counsel explain how existing regulations governing the handling of property on park land would apply to Occupy D.C., which has symbolically “occupied” McPherson Square since October. He did not issue a ruling from the bench, but indicated that he felt there wasn’t an urgent threat facing the protesters that would warrant a preliminary injunction.

Assistant U.S. Attorney Marina Braswell confirmed that there were no imminent plans to seize tents or close the park, and that the National Park Service would comply with existing regulations requiring it to safeguard seized property and provide written notice of any future plans to close the park. She was careful to note, however, that the law gives the agency the right to close the park or cordon off sections in the event of an emergency.

Light had acknowledged that regulations already in place would require the government to give written notice of a plan to close the park – in the absence of an emergency – and give counsel time to object in new court filings. He said that as long as the government made sure to notify the court and counsel, he was satisfied.

In his opinion, Boasberg wrote that while the protesters submitted declarations to the court claiming property had already been seize or destroyed by Park Police without enough notice, “the facts surrounding these alleged incidents, however, remain murky.” He wrote that if the Park Police did decide to close McPherson Square, he was satisfied with the amount of notice they would need to give according to existing regulations.

“As they have not shown any imminent actual injury that threatens their tents and as any future closing of the Square remains too hypothetical for the Court to address, Plaintiffs’ request for injunctive relief will be denied,” Boasberg wrote in his opinion.

The protesters have been fighting in court since Dec. 5 for their right to maintain the site at McPherson Square, claiming that any removal of their tents or other property would constitute a violation of their Fourth and Fifth Amendment rights.

The lawsuit doesn’t challenge the park service’s no-camping rule or its right to enforce it. Instead, the demonstrators argue that the tents are part of a protest protected by the First Amendment, and that police don’t have a right to move or remove them if the owners aren’t in violation of the no-camping rule or any other laws.

Light called the ruling and Tuesday's hearing a "victory," even though they didn't win the actual motion.

"The government made a number of concessions at the hearing on Tuesday, including, as Judge Boasberg noted in his opinion, disavowing any 'present intent to seize items from Occupy DC demonstrators who are complying with the law,'" Light wrote in an e-mail on Thursday. "This was in itself a victory for Occupy DC members."